Restrictions
on political parties in the Council of Europe member states

1.
The question of the banning of democratically elected political
parties in Council of Europe member states was raised in the
Parliamentary Assembly two years before the European Court of Human Rights
handed down its judgment of 31 July 2001 in the case of Refah Partisi
(Welfare Party) and Others against Turkey. This judgment, which held that
the banning of a political party was not incompatible with the European
Convention on Human Rights, is not final: the case has been referred to the
Grand Chamber of the Court.

2.
The Assembly considers that the issue of restrictions on political
parties is by nature a very complex one. However, the tragic events which
took place in New York on 11 September 2001 should encourage us to reflect
still further on the threats to democracy and freedoms posed by extremism
and fanaticism.

3.
The question of restrictions on political parties reflects the
dilemma facing all democracies: on the one hand, the ideology of certain
extremist parties runs counter to democratic principles and human rights,
and on the other hand, every democratic regime must provide maximum
guarantees of freedom of expression and freedom of assembly and association.
Democracies must therefore strike a balance by assessing the level of threat
to the democratic order in the country represented by such parties and by
providing safeguards.

4.
The Assembly points out that, in the Council of Europe member states,
restrictive measures applied to political parties are provided for in their
constitutions or national legislations.

5.
In this respect, the Assembly notes that the historical development
of each individual country and differences in the level of tolerance result
in a diverse range of sanctions, varying from one country to another, for
identical situations. For example, coercive measures range from mere
material restrictions to dissolution, which remains, nevertheless, an
exceptional measure.

6.
The Assembly takes note of the proposals put forward by the European
Commission for Democracy through Law (Venice Commission) in its Guidelines
on the prohibition and dissolution of political parties and analogous
methods (published in January 2000) in order to obviate the need to
adopt the extreme solution of banning political parties. The measures it
recommends include fines, administrative measures, withdrawal of state
subsidies, boycotts by other political factions, and bringing members of the
political party involved to justice.

7.
The Assembly notes that in many states no legal restrictions on the
activities of political parties have been applied in recent years, and that
in cases where sanctions had been envisaged they were ultimately not put
into effect. Nevertheless, the Assembly points out that some countries have
on occasion felt it necessary to take steps to dissolve political
parties.

8.
In this regard, it also points out that a common feature of all
democracies is that the prohibition of political parties is the
responsibility of the judicial authorities. In most countries, it comes
under the exclusive competence of the Constitutional Court, or much less
frequently the Supreme Court or ordinary courts.

9.
The Assembly stresses that the European Convention on Human Rights
constitutes a safeguard against the abusive dissolution of a political
party. The European Court of Human Rights has stated that political
parties are a form of association essential to the proper functioning of
democracy.2
Having regard to this fundamental role, the Court emphasises that the
exceptions set out in Article 11 are, where political parties are concerned,
to be construed strictly; only convincing and compelling reasons can justify
restrictions on such parties freedom of association.
3 The Court has been
required to rule on cases of dissolution on a number of occasions since
1952.

10.
In this context, the Assembly believes that in exceptional cases, it
may be legitimate for a party to be banned if its existence threatens the
democratic order of the country.

11.
In conclusion and in the light of the foregoing, the Assembly calls
on the governments of member states to comply with the following
principles:

i.
political pluralism is one of the fundamental principles of every
democratic regime;

ii.
restrictions on or dissolution of political parties should be regarded as
exceptional measures to be applied only in cases where the party concerned
uses violence or threatens civil peace and the democratic constitutional
order of the country;

iii.
as far as possible, less radical measures than dissolution should be
used;

iv.
a party cannot be held responsible for the action taken by its members if
such action is contrary to its statute or activities;

v.
a political party should be banned or dissolved only as a last resort, in
conformity with the constitutional order of the country, and in accordance
with the procedures which provide all the necessary guarantees to a fair
trial;

vi.
the legal system in each member state should include specific provisions
to ensure that measures restricting parties cannot be used in an arbitrary
manner by the political authorities.

1.
Text adopted by the Standing Committee, acting on behalf of the
Assembly, on 18 November 2002 (see Doc. 9526,
report of the Political Affairs Committee,rapporteur: Mr DreyfusSchmidt).

2.
See ECHR, 30 January 1998, United Communist Party of Turkey and Others
against Turkey judgment.

3.
See ECHR, 28 May 1998, Socialist Party and Others against Turkey judgment.